Quare, whether there can be a public highway which is not a thoroughfare? Unfinished street, dedica dedication to the public before 1719, or subsequently to that period, with the consent of the owner of the fee. I am still of opinion that the case was presented properly to the consideration of the jury, and I think they have found a right verdict. — Bayley J. It is not necessary to decide upon the present occasion, whether there can be a highway which is not a thoroughfare. For the point in this case is, whether, supposing that to be so, there has been a dedication of this way to the public? Now in order to give the public that right, it must be done with the consent of the owner of the fee; for where it is given by an individual having a limited right, it can only continue for a limited period. Here, upon the evidence, it appears that the permission was given, if at all, by the lessee for 99 years. I think, therefore, that the case was properly left to the jury, and that they have found a proper verdict.- Holroyd J. The opinion of Lord Kenyon in the Rugby Charity v. Merryweather, 11 East, 375. (n.) (ante, p. 579.) is somewhat shaken by the observations of Ld. C. J. Mansfield in Woodyer v. Hadden, 5 Taunt. 142. (ante, p. 580.) But it is not necessary to determine that question here, for this case has been determined upon principles which assume the case of the Rugby Charity v. Merryweather to be good law. - Best J. I am quite satisfied with the verdict which the jury have found in this case, and with the manner in which the question was left to them. No man has a greater respect for the learned judge who decided the case of the Rugby Charity v. Merryweather than I have, but I think that that decision was a departure from principles usually received in the law. If a road be for the accommodation of particular persons only, it is not a public road; and, therefore, I can see no reason why the inhabitants in a street which is not a thoroughfare should not put up a fence at the end of it and exclude the public. It is not, however, necessary to decide that question in this case, because, independently of it, the plaintiff was entitled to the verdict. R.R. In an action on the case for personal injury sustained by the plaintiff, through defendant's negligence, from an unfinished house, tion presumed. the question was whether the street in which it happened had become a highway by dedication to the public. It was a new street, and was neither paved nor lighted, and it led from an old street to a road over fields; but the public had used it for four or five years. Best C. J. told the jury, that if they thought the public had used it as a highway with the assent of the owners of the soil, they might presume a dedication; and the verdict having done so, the court of C. P. refused to disturb it. Jarvis v. Dean, 3 B. 447. Way over crown land used for near 20 years: Held no presumption of dedication. In a case where there had been a right of footway over land which belonged to the crown, and by an inclosure act which passed nearly twenty years before, all roads were discon tinued, unless where the commissioners awarded otherwise, and there was no such provision by the commissioners as to the footpath in question, but the public had still continued to use it; the court recognised the authority of Wood v. Veal (see supra), which decided that the consent of the lessee alone was not sufficient to bind the owner, and that no legal dedication to the public was in this case to be presumed. Harper v. Charlesworth, 4 B. & C. local act, and certain persons only were by the act to use it, but in fact it had been used by the public for many years. this was not sufficient evidence of a dedication to the public; it was held that and that if it was, there being no evidence that the parish had acquiesced in that dedication, it was not a public road which the parish were bound to repair. Rex v. The Inhab. of the Parish of St. Benedict, in the Town Rex v. Inh. of and County of Cambridge, E.2 G. 4. 4 B. & A. 447. Presentment St. Benedict, in the usual form, by a magistrate against the defendants, for not Cambridge. Where a road repairing a highway. Plea, not guilty. The case was tried at the was set out by Cambridge Lent Assizes, 1820, before Graham B., when a verdict the commiswas found for the crown, subject to the opinion of the court of sioners under a K. B. on the following case:-The road, which was proved to be out of repair, was situate in the defendants' parish, and was originally made under the provisions of a local act passed in the 41 G. 3. By a clause in that act the commissioners were directed to set out two specific private roads, therein particularly described, which, when set out, were to be used by such persons only as were entitled to use an old occupation-road, running in the same direction with the latter of the two roads. The commissioners acting in execution of this power, by their award, dated June 27. 1803, set out the road presented as one of these two roads. From the date of the award, however, until the finding of the presentment, the road had been used by the public without interruption as a carriage-way. The question was, whether under these circumstances this was a public road which the parish was bound to repair? After argument, in which the cases of The Trustees of the Rugby Charity v. Merryweather (11 East, 375.), The King v. The West Riding of Yorkshire (2 East, 342.), and Rex v. Lloyd (1 Camp. 260.), were cited, Abbott C. J. said, I am of opinion that this was not a public road, and that the parish are not bound to repair it. It was in this case, as appears from the clause in the local act, compulsory on the owner of the soil to permit a qualified passage, viz. to all persons entitled to use the old occupationroad. That circumstance distinguishes this from the cases cited. If this be a public road, it would follow that wherever, under an inclosure act, an occupation-road was set out, and it happened to be convenient for passage, it would become, almost immediately, a public road, and the burthen of repairing it would be thrown on the parish.- Bayley J. I do not accede to the doctrine, that because there is a dedication of the road by the owner of the soil, and the public use it, that the parish is therefore bound to repair. I think there ought to be, in addition to that, evidence (a) of an acquiescence by the parish in that dedication. In the case of bridges, there always is what is to be considered as an acquiescence by the county. The county is not liable except for bridges made in highways; the making of the bridge, and thereby obstructing the road while the bridge is making, may be treated as a nuisance, and the county may, if it think fit, stop its progress by indictment, and the forbearing to prosecute in that way is an acquiescence by the county in the building of the bridge. But in the case of a parish, they have no power to prevent the opening of a road, or to obstruct the public use of it. It would be most unjust if, by the public use of what was at first a private road, the burthen of repairing it could be removed from the persons to whom the use of it was at first confined, and cast upon the parish. Admitting, therefore, that in this case there was a dedication to the public (which, I think, does not sufficiently appear), and the road was found to be a public benefit (which I am not sure is the (a) But see the next case. Rex v. Inh. of case,) I think that in consequence of the want of some act of acSt. Benedict, quiescence or adoption by the parish, they are not liable to the repair of this road. Holroyd and Best Js. concurred. Judgment for the defendants. Cambridge. Where the public have made use of a highway, no tion by the parish is required. On the indictment of a parish for the non-repair of a road, it appeared on special case that certain commissioners under an act for the drainage of certain tracts of land, had formed a bank particular adop- forty feet broad, by the side of a drain, and with earth which had been taken out of the drain; and the bank had been used for twenty-five years as a convenient and useful road for the public, during which time the parish had repaired it; and the land on which the bank was placed had been purchased by the commissioners. The court held, that where a highway had been made use of by the public, the parish must be charged with the repairs of it, and that no particular adoption of it by the parish was requisite controverting in this respect what was laid down in R. v. Benedict; but that even if any adoption were necessary, the repair of it by the parish was a sufficient adoption: they further held, that there was no reason why such commissioners might not make a legal dedication of a highway, provided it were not inconsistent with the duties of their trust; but the court were divided in opinion whether in the present instance the commissioners could, consistently with the object of the act, make the dedication in question. R. v. Inhabitants of Leake, 5 B. & Ad. 469. Repairs done by the parish are a sufficient adoption. Commissioners may dedicate a road to the public, if consistent with their trust. Public permitted to use a road for a certain purpose only. Parish in ge The Marquis of Stafford v. Coyney, 7 B. & C. 257. The plaintiff had suffered the public to use for several years a road through his estate for all purposes, except for carrying coals; and it was held that this was either a limited dedication of the road to the public, or no dedication at all, but only a licence revocable; and that a person carrying coals along the road after notice not to do so was a trespasser. 2. Who are liable to repair, and of the Yeans of enforcing Repairs. [13 G. 3. c. 78.-34 G. 3. c. 74.42 G. 3. c. 90.] It seems to be agreed that of common right (that is, by the neral to repair. common law) the general charge of repairing all highways lies on the occupiers of the lands in the parish wherein they are. But particular persons may also be burthened with the general charge of repairing a highway in two cases, namely, in respect of an inclosure, or by prescription. Where indi viduals liable to repair become insolvent. Where the road is placed by stat, under And to such an extent is this obligation, that if the inhabitants of a township bound by prescription to repair the roads within the township be expressly exempted, by the provisions of a road-act, from the charge of repairing new roads to be made within the township, that charge must necessarily fall upon the rest of the parish. R. v. Inh. of Sheffield, 2 T. R. 106. 1 Russ. 320. And upon the same principle it was holden, that if particular persons were made chargeable to the repairs of such highways by a statute lately made, and became insolvent, the justices of peace might put that charge upon the rest of the inhabitants. Anon. 1 Ld. Raym. 725. 1 Russ. 320. And where a statute enacted that the paving of a particular street should be under the care of commissioners, and provided a fund to be applied to that purpose, and another statute, which the care of was passed for paving the streets of the parish, contained a clause commissioners. that it should not extend to the particular street, it was held that the inhabitants of the parish were not exempted from their common law liability to keep that street in repair; that the duty of repairing might be imposed upon others, and the parish be still liable; and that the parish were under the obligation, in the first instance, of seeing that the street was properly paved, and might seek a remedy over against the commissioners. R. v. Inh. of St. George, Hanover Square, 3 Campb. 222. 1 Russ. 320. See acc. R. v. Inhabitants of Netherthong, 2 B. & A. 179. No agreement can exonerate a parish from the common law No agreement liability to repair; and a count in an indictment against the cor- will exonerate poration of Liverpool, stating, that they were liable to repair a a parish. highway, by virtue of a certain agreement with the owners of houses alongside of it, was held to be bad, on the ground that the inhabitants of the parish, who are prima facie bound to the repair of all highways within their boundaries, cannot be discharged from such liability by any agreement with others. R. v. the Mayor, &c. of Liverpool, 3 East, 86. And see 3 Bac. Abr. Highways, (F.) 1 Russ. 321. It is an incontrovertible position, that by the general law of the land, the parish at large is prima facie bound to repair all highways lying within it, unless by prescription they can throw the onus on particular persons by reason of their tenure; but when that is the case, it is by way of exception to the general rule. Per Ashhurst J., R. v. Inh. of Sheffield, 2 T. R. 106. See also 2 Saund. 159 b. (n.) held bad. Rex v. Inhabs. of Kingsmoor, T. 1823, 2 B. & C. 190. Indict- Indictment of ment stated, "that a certain way was an ancient common high- an extra-paroway, and that a certain part situate in an extra-parochial hamlet chial hamlet, was out of repair, and that the inhabitants of the extra-parochial hamlet ought to repair it:" Held, that this indictment was bad, as it did not allege that the inhabitants of the hamlet were immemorially bound to repair; nor that the hamlet did not form part of a larger district, the inhabitants of which were bound to repair. And quære, whether the inhabitants of the hamlet, being extraparochial, would be liable to repair at common law if the indictment had contained the latter allegation? See per Best J., S. C. ibid. p. 195. Commissioners under an inclosure act (autho rising them to and private roads, which public roads set out public should be repaired as other R. v. Inh. of Cottingham, 6 T. R. 20. This was an indictment against the inhabitants of the parish of Cottingham for not repairing a road. By stat. 6 G. 3. c. 78. for inclosing certain common lands, the commissioners were empowered to set out both public and private roads, which public roads should be repaired in like manner as other public roads, and all private ways should be repaired by such persons and in such manner as the commissioners in their award should direct. The commissioners directed that all roads, whether public or private, should be repaired in like manner as other public highways are repaired, by the laws of this realm. The defendants pleaded that no allotment was made to or for the use or benefit of the inhabitants of the parish under this act; and that at the time of making the award under it, the inhabitants of the parish were not liable to repair the road in question, which was such manner as a private road, or any other private road over the lands inclosed. the commisThe prosecutor demurred to this plea: and, after argument, sioners should public roads, and which private ways should be repaired by such persons and in R. v. Inh. of direct) cannot direct that the private as well as public roads should be re paired as other public roads are by law to be repaired. Award under the proper no- Parish not liable, unless it If parish have repaired, it is not conclusive as to their liability. judgment was given for the defendants.-Lord Kenyon C.J. (inter alia) said, It is contended that the legislature meant that the parish, who derive no benefit from this act, should be made subject to the burthen of repairing this road. The act empowers the commissioners to set out all the roads, adding, that the public roads shall be repaired as other public roads are repaired, and that the private roads shall be repaired by such person and persons, and in such manner, as the commissioners shall direct. And the question is, whether the words " person and persons" extend to any strangers that the commissioners should name, the inhabitants of Cornwall or Yorkshire for instance, or whether they must be confined to such persons as are interested in the inclosure? Common sense requires that the latter construction should be adopted. Upon an indictment against the parish of Hasling field, for not repairing a highway, an award made by commissioners under an inclosure act, which awarded the highway to be in a different parish, was holden not to be admissible evidence for the defendants, without shewing that the commissioners had given notices which the act required to be given previously to the boundaries having been ascertained by them; it appearing that the usage had not been pursuant to the award; the defendants having, since the award, as well as before, repaired the highway. The learned judge who tried this cause reported that he should have no difficulty in admitting the award, and, if the usage had been pursuant to it, presuming that the proper notices had been given. R. v. Inh. of Hasling field, 2 M. & S. 558. R. v. Inh. of the Parish of Enfield, Sitt. after H. 1819, cor. Abbott C. J. MS. Indictment against the defendants for not repairing a road, called Welch's Lane, and the road over the marshes, leading from the turnpike road at Enfield Wash to the government foundery for small arms. Plea, not guilty. In support of the indictment it was contended, that this lane was an ancient public highway, and had been repaired by the parish time out of mind; that the commissioners under the Enfield inclosure act could not abolish it as a public road, without the order of two justices, which they never obtained; that the commissioners had set it out, and improperly called it a private road, but had directed the parish to repair it; that this was not like the Cottingham case, where the parish was not liable to the repair of the road previous to the inclosure, nor had any allotment under the act; for that here the parish of Enfield had always repaired this lane, which led from the turnpike road to the river Lea, and had also an allotment under the act, as well as a share of the timber growing on the chase, and that the commissioners were therefore justified, when they set out this road, in directing the parish to repair it. Upon the cross-examination of witnesses for the prosecution, it appeared, that at the lower end of Welch's Lane, a gate across a part of the road, leading over an ancient inclosure into the marshes, had been occasionally locked; and that the farmers holding lands in the marshes formerly paid three-pence or four-pence an acre for carrying their hay through this inclosure, when Abbott C. J. stopping the counsel for the crown, said, that unless the prosecutors were prepared to contradict their own witnesses, the case must end:that a public highway must lead from one town or vill to another, and be free for the passage of all H. M.'s subjects; whereas, it was proved in evidence, that Welch's Lane led only to a farm-house, |